Four Years After Citizens United: The Fallout

Four years ago today, the Supreme Court handed down its decision in Citizens United v. Federal Election Commission, allowing unions, corporations, and associations to spend unlimited amounts in elections provided that they don’t coordinate their efforts with a candidate. The decision triggered a controversy that included President Obama criticizing the Supreme Court for “open[ing] the floodgates to special interests” in his 2010 State of the Union address. What has — and hasn’t — changed in the years since?

Let’s start with the obvious: Citizens United helped unleash unprecedented amounts of outside spending in the 2010 and 2012 election cycles. Outside groups existed before Citizens United, but were legally limited in the ways they could use that money to influence elections. Citizens United, in combination with a lower court case called SpeechNOW.org v. FEC, paved the way for direct corporate spending and the creation of super PACs, which can accept unlimited contributions from corporations, unions and individuals for the purpose of making independent expenditures. During the 2012 cycle, in which non-party outside spending tripled 2008’s total and topped $1 billion for the first time, super PACs accounted for more than $600 million of that spending.

Possibly wary of public backlash, publicly traded corporations have been less than eager to join in the outside spending game — at least openly. Perhaps aware that corporate spending on elections plays poorly with voters, only a handful of such corporations have made contributions to super PACs, including Chevron and Scotts Miracle-Gro. Privately held businesses, however, have not been so restrained; companies like Oxbow Carbon and Contran Corporation, which made direct contributions from their treasuries to conservative super PACs, were among 2012’s biggest sources of outside money.

Outside of the public eye, major corporations may be even more active in elections. That’s because Citizens United also gave rise to “dark money” groups, nonprofits that don’t disclose their donors publicly but enjoy the same right to make independent expenditures as for-profit corporations. Such groups spent $256 million, or just over a quarter of all non-party outside spending, in the 2012 elections; how much of that money came from corporate treasuries is unknown.

At least one prominent observer thinks that the impact of Citizens United on corporate money in politics was as much psychological as it was legal. Trevor Potter, who was the attorney for John McCain’s 2008 presidential campaign, has suggested that Citizens United gave corporate spending in elections the “Good-Housekeeping-seal-of-approval,” perhaps emboldening companies to take steps they would not have considered prior to 2010. In contrast, labor unions — which were already prominent on the lists of biggest donors to the 527 organizations that preceded super PACs — probably didn’t need any encouragement to make seven-figure contributions to liberal super PACs.

For all the spending it helped enable, though, Citizens United did not single-handedly determine the results of the last two elections. The largest target of outside spending in 2012, for example, was Barack Obama, and liberal outside groups as a whole were vastly outspent by their conservative counterparts. Yet Obama won and Democrats gained seats in both chambers of Congress. The biggest groups saw little return on their investment; American Crossroads/Crossroads GPS, 2012’s top outside spender, had a success rate of just 6.6 percent in the general election, meaning that over 93 percent of that money was spent attacking candidates who won anyway or supporting ones who did not prevail.

That’s not to say, however, that all that outside money had no effect. In at least 36 House and Senate races in 2012, more money was spent during the general election by outside groups than by the candidates themselves. The mere threat of super PAC dollars often prompts candidates to raise even more money, in order to have the resources to respond to outside attacks. And super PACs that support just one candidate — often run by that candidate’s close associates — are increasingly common. The money race continues to escalate and shows no signs of slowing down. The upshot, as UC-Irvine law professor Rick Hasen points out, is that elected officials are even more beholden to major donors than they were during the Watergate era, since those donors no longer need to hide from the law.

Though a landmark in the history of campaign finance, Citizens United was only one of several court decisions in the last decade that have reshaped the political playing field. Another may follow this year when the Supreme Court rules in McCutcheon v. FEC, in which a mega-donor is challenging the overall limit on direct campaign contributions from individuals. Regardless of how the justices decide, expect future election cycles to feature new tactics for raising and spending campaign cash, as political operatives exploit loopholes or push the boundaries of the law in an attempt to gain an edge. Very little about the future of campaign finance is certain except for change and the need for continual scrutiny.

Andrew joined the Center in February 2013 as the researcher responsible for committees. Before joining CRP, he was a fellow with the Progressive Change Campaign Committee. Andrew has a B.A. in political science from Yale, where he was the treasurer of Students for a New American Politics, the country's largest student-run PAC.

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